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In wake of Arizona immigration decision, other states contemplate law

7:14 AM, Jun 26, 2012   |    comments
Activists demonstrate outside the Arizona State Capital.
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WASHINGTON - The Supreme Court's split ruling Monday on Arizona's controversial immigration law did nothing to settle the debate - providing little clarity on how far states can go to police their borders and solidifying the topic as a key election-year issue.

The court, in Arizona v. United States, upheld a key provision that requires state and local police to check the immigration status of people they've stopped or detained if a "reasonable suspicion" exists that they're in the country illegally. Though this pillar of the law survived the federal government's challenge, the courts are likely to see it again once it is fully implemented.

The justices, in a 5-3 vote, struck down three other provisions that created new state crimes targeting illegal immigrants, arguing that Arizona had usurped federal authority in the area of immigration enforcement.

The court battle pitted Arizona's Republican Gov. Jan Brewer, who signed the immigration bill into law two years ago, against President Obama, whose Justice Department sued the state to block it. Both Brewer and Obama claimed victory, suggesting just how difficult it will be to reach a consensus on how local police can approach, question and arrest the country's 11 million illegal immigrants.

"The Supreme Court has really sent us a mixed message," said Arizona state Sen. Steve Gallardo, a Democrat and opponent of the bill.

Brewer said the "heart of the bill" was upheld, and state legislators around the country sounded emboldened, arguing that the ruling will not only help similar laws survive constitutional challenges but will lead to more laws when state legislatures reconvene in January.

Janet Murguia, president of the National Council of La Raza, a Hispanic civil rights group, said the court upheld the "heart of the problem." But activists held out hope that because the majority of the law was gutted, similar laws across the country - or those under consideration - will suffer a similar fate.

As other states targeting illegal immigration sort out the legal fallout from the ruling, the decision swiftly moved into the political realm as Obama and presumptive Republican presidential nominee Mitt Romney weighed in.

The president said he remained "concerned about the practical impact of the remaining provision" and that it could open the door for racial profiling. In fact, Obama's Department of Justice announced late Monday that it had set up a telephone hotline and e-mail address to field reports of civil right complaints when the law goes into effect, which will happen after a federal injunction is lifted.

Romney said the ruling underscores how Obama has failed to develop a national immigration strategy that does not force states to fend for themselves: "This represents yet another broken promise by the president."

The political heat will only increase on Thursday when the justices are expected to issue another highly anticipated ruling on the president's health care law.

The Arizona ruling follows Obama's decision this month to halt the deportation of young illegal immigrants who were brought to the United States as children. The decision affects an estimated 800,000 people.

Although Arizona officers will soon begin the immigration checks of people in the state, Department of Homeland Security officials said Monday that it simply won't take action in many cases brought forward by the state.

Homeland Security has established a priority list of illegal immigrants they target for removal, including people who are threats to national security, people with dangerous criminal records and repeat border-crossers. If Arizona officers start calling for immigration checks of people who don't fall in line with those priorities, DHS won't pick them up or initiate deportation proceedings against them, said a senior DHS official who spoke on condition of anonymity because he was not authorized to speak publicly.

Other states see vindication

After Arizona passed SB 1070 in 2010, GOP-led legislatures in five other states - Alabama, Georgia, Indiana, South Carolina and Utah - followed its lead in 2011 by passing similar laws. Portions of all of those laws were blocked by lower courts, and efforts in other states stalled during state legislative sessions this year.

While both opponents and supporters of state-led immigration crackdowns said Monday's ruling will help their causes, legal experts weren't so sure.

Catherine Gage O'Grady, a law professor at Arizona State University's Sandra Day O'Connor College of Law, said the court did not give a full-throated endorsement of the portion of Arizona's law that it upheld. Instead, the court said that part of the law needs to go into effect before courts can get a sense of how it will be used.

"All the court did was say that the timing of this is such and the language of the statute is such that we cannot say on its face that it is pre-empted (by federal law)," O'Grady said.

State legislators supportive of the Arizona law say the portion that survived will help their laws withstand court challenges.

In Alabama, the House majority leader, Republican Rep. Micky Hammon, said the "real teeth of Arizona's law" survived, meaning their law, and others like it, should be just fine.

Georgia's Republican Gov. Nathan Deal echoed that sentiment. "It appears the court has upheld the major thrust of our state's statute, that states have the right to assist in enforcing federal immigration law," Deal said in a statement.

Legislators eager to enact their own laws to fight the tide of illegal immigration saw hope in Monday's ruling.

"The decision reaffirms our position that we do have a place in this debate," said Pennsylvania state Rep. Daryl Metcalfe, the Republican founder of State Legislators for Legal Immigration. "We do have a right to protect our citizens from the illegal alien invasion."

Kansas Secretary of State Kris Kobach, who helped Arizona and other states write their immigration laws, said the arrest provision in Arizona's law was the most important one. He said Arizona-style legislation could be passed in states such as Kansas, Mississippi, Missouri, Nebraska and Pennsylvania.

"The arrest provision does all the heavy lifting in the law," Kobach said. "This removes the uncertainty ... for state legislators. And once you remove the uncertainty, that's when the ball gets rolling."

That buoyant reaction confused groups that have been fighting immigration laws in Arizona and elsewhere.

Murguia, of La Raza, said the opinion left the door "wide open" for more lawsuits as the law goes into effect and immigrants - both legal and illegal - are improperly detained by police. Implementation of the law could lead to lawsuits challenging the way it is enforced.

"I don't see how any reasonably minded state legislator could see this decision as a green light," Murguia said. "(The justices) have done everything but put a giant stop sign for other states. It seems like a hard stop and a warning to states to advance at their own peril."

Kobach disagreed, noting that Arizona's law spells out clearly that racial profiling is forbidden. So if a "bad apple" officer breaks that portion of the law, that officer will face legal consequences, not the law itself, he says.

Inside the decision

The court upheld Section 2(B) of Arizona's law - the arrest provision - 8-0, with Justice Elena Kagan recusing herself because of her work as solicitor general under President Obama.

"It is well established that state and local officers generally have authority to make stops and arrests for violations of federal criminal laws," Justice Samuel Alito wrote in his dissent. "I see no reason why this principle should not apply to immigration crimes as well."

But Justice Anthony Kennedy made it clear in the majority opinion that the court was not completely endorsing the section.

"At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume (Section 2(B)) will be construed in a way that creates a conflict with federal law," Kennedy wrote.

The other three sections were struck down for different reasons. Chief Justice John Roberts and Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor concurred with all of Kennedy's majority opinion.

Section 3 of the law made it a state crime if illegal immigrants did not possess federal registration cards.

Arizona officials argued that they were simply mirroring federal law with the section, but the justices felt the state delved too deeply into federal responsibilities.

"The federal registration framework remains comprehensive," Kennedy wrote. "Because Congress occupied the field, even complementary state regulation is impermissible."

Arizona legislators targeted day laborers with Section 5(c) of the law, which made it a state crime for illegal immigrants to work, apply for work or solicit work in any way.

Congress over the years has passed laws targeting employers who knowingly hire illegal immigrants, and the justices felt those laws reflected a conscious decision that it would be "inappropriate to impose criminal penalties on unauthorized employees."

Section 6 of the law allowed state and local police to arrest illegal immigrants without a warrant when probable cause exists that they committed "any public offense that makes the person removable from the United States." In that case, the justices found that "the federal scheme instructs when it is appropriate to arrest an alien during the removal process."

Speaking generally about the powers of a state to police its own borders, Justice Antonin Scalia wrote in a spirited 22-page dissent, "We are not talking about a federal law prohibiting the States from regulating bubble-gum advertising, or even the construction of nuclear plants. We are talking about a federal law going to the core of state sovereignty: the power to exclude."

How to enforce the law

Though the first round of court battles ended Monday, the focus now will shift to how the remaining provision is implemented.

The "reasonable suspicion" provision has drawn criticism from immigration-rights groups, who say it would usher in state-sanctioned harassment and profiling.

Karen Tumlin, managing attorney for the National Immigration Law Center, which has filed lawsuits against Arizona's law, called it a "state policy of immigration inquisitions" and said it will put state law officers in untenable positions.

"There is no way to determine on sight and sound who has a right to be in this country and who does not," Tumlin said.

Police officials in Arizona said they've already been enforcing portions of SB 1070 that were allowed to stand, and they've been preparing for full implementation for two years.

Cochise County (Ariz.) Sheriff Larry Dever said many in police management and in city governments in his state had opposed the law, but that "the rank and file, the guys on the street, supported it wholeheartedly."

Dever said that "this whole racial profiling thing is an insult to the profession. We don't tolerate it today, and this law doesn't change any of that."

Brian Livingston, executive director of the Arizona Police Association, concurred, saying that most police forces had already implemented "show-your-papers" guidelines and had provided training in how to enforce the part of the law.

"You just can't pluck someone off the street and say, 'Show me your papers,' " Livingston said. "That has been a fallacy from the beginning, and thankfully it was not in the law."

But some worried about the difficulty officers will have in determining who is legally in the country and who is not.

"There is a body of case law defining what constitutes reasonable suspicion in other contexts, but no such guidance exists regarding illegal immigrants, and SB 1070 does not define the term," Tucson Police Chief Roberto Villasenor said. "We are in uncharted territory."

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